Daily Comment on News and Issues of Interest to Michigan Lawyers

02/27/2012

Primary Eve: The Candidates And The Courts

According to the Secretary of State website, the February 28th Michigan Republican primary election ballot will include the names of Michele Bachmann, Herman Cain, Newt Gingrich, Jon Huntsman, Gary Johnson, Fred Karger, Ron Paul, Rick Perry, Buddy Roemer, Mitt Romney and Rick Santorum. The Democratic ballot will include only the name of Barack Obama. From the official websites of the candidates actively campaigning in Michigan, here, in alphabetical order, are the candidates' statements on the judiciary and the courts:

The Founding Fathers felt strongly about limiting the power of judges because they had suffered under tyrannical and dictatorial British judges. In fact, reforming the judiciary, along with “no taxation without representation”, was among the American colonists’ principal complaints about the British Empire prior to the revolution. A number of the grievances in the Declaration of Independence relate to judges dictatorial and illegal behavior. As a result the Constitution provided for a narrowly defined and limited judiciary as Alexander Hamilton made clear in the Federalist Papers.Since the New Deal of the 1930s, however, the power of the American judiciary has increased exponentially at the expense of elected representatives of the people in the other two branches. The judiciary has acted on the premise of “judicial supremacy,” where courts not only review and apply laws, but also actively seek to modify and create new constitutional law from the bench that the Supreme Court has asserted should be binding on the other two branches.Judicial supremacy operates on the assumption that a Supreme Court decision on constitutional interpretation is final for all branches of government unless the Court reverses itself in the future, or a constitutional amendment is passed. The result is that courts have become more assertive and politicized to the point of an abuse of power. As federal courts have intervened in sectors of American life never before imaginable, the public has increasingly come to view them as an usurpative device for unelected rulers. This abuse of power and loss of public confidence amounts to a constitutional crisis.Yet judicial supremacy only survives due to the passivity of the executive and legislative branches, which have refused to use their respective powers to correct the Court.Said House Minority Leader Nancy Pelosi in 2005 about the Supreme Court’s decision in Kelo v. New London, which weakened citizen protections against government seizure of property: "It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision."Such a view holds that only a constitutional amendment can limit or overturn a Supreme Court decision on constitutional questions. But surely anyone holding this view would concede that the Supreme Court could reverse itself, which it has done well over 100 times. If Supreme Court decisions can only be overturned by a subsequent court decision or by constitutional amendment, then that would mean that that a Supreme Court decision interpreting the Constitution has the force of a constitutional amendment.This view is fatally flawed. The Founding Fathers created a system of checks and balances among the three federal branches that was intended to operate in the normal course of governing. It was precisely this balance of power between the three branches that the founding fathers believed would protect freedom. They based their understanding of a constitutional division of powers on Montesquieu's writing which would have explicitly rejected any one branch's supremacy. The amendment process was reserved for making fundamental changes to our constitutional structures; the amendment power was not intended to be used as a way to check and balance Supreme Court decisions. Our founding fathers believed that the Supreme Court was the weakest branch and that the legislative and executive branches would have ample abilities to check a Supreme Court that exceeded its powers.

Take for example the legislative check on the executive branch’s war making powers. If the legislative branch disagrees with the executive’s conduct, it can always decide to use its power of the purse to not appropriate monies that fund the executive branch’s conduct of a war. The idea that the legislative branch would have to pass a constitutional amendment to oppose the executive branch’s actions would strike anyone as ludicrous. Yet, if the Supreme Court were to hand down a decision concerning the constitutionality of the executive branch’s war making powers with which neither the executive nor the legislative branches agreed, we are supposed to believe that the only recourse to checking this decision of the Supreme Court is to pass a constitutional amendment. This view is clearly fatally flawed.Drawing together 290 House members, sixty-seven senators, and thirty-seven states to pass a constitutional amendment is a difficult and time-consuming task. It is little wonder that the American people lose interest, shrug their shoulders, and give up on the fight if they believe they have to do so in order to correct a decision of five fellow citizens serving on the Supreme Court.However, a constitutional amendment is a fight that neither of the other two branches is required to undertake in order to exercise checks and balances under the Constitution. The Constitution does not require a constitutional amendment to correct a Supreme Court decision, nor has it been the American tradition.This NEWT 2012 campaign document serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress. A Gingrich administration will use any appropriate executive branch powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution. The historical and constitutional basis for this position is outlined in this paper.Newt Gingrich looks forward to having a national conversation over the next year about reestablishing a Constitutional balance among the three branches, how best to bring the Courts back under the Constitution, and formulating executive orders and legislative proposals that will establish a constitutional framework for reining in lawless judges. This paper begins that conversation.The rejection of judicial supremacy and the reestablishment of a constitutional balance of power among the legislative, executive, and judicial branches will be an intense and difficult undertaking. It is unavoidable if we are going to retain American freedoms and American identity.

Ron Paul The Ron Paul website does not specifically address the issue of the judiciary or the role of the courts.

Mitt Romney’s view of the Constitution is straightforward: its words have meaning. The founding generation adopted a written constitution for a reason. They intended to limit the powers of government according to enduring principles. The job of the judge is to enforce the Constitution’s restraints on government and, where the Constitution does not speak, to leave the governance of the nation to elected representatives.

At times over the past hundred years, some justices of the Supreme Court did not carry out that duty. There were occasions when the Supreme Court declined to enforce the restrictions on power the Framers had so carefully enumerated. At other points, the Court created entirely new constitutional rights out of “penumbras” and “emanations” of the Constitution, abandoning serious analysis of the Constitution’s text, structure, and history.

Mitt believes in the rule of law, and he understands that the next president will make nominations that will shape the Supreme Court and the whole of the judiciary for decades to come. He will therefore appoint wise, experienced, and restrained judges who will take seriously their oath to discharge their duties impartially in accordance with the Constitution and laws — not their own personal policy preferences.

As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito. These justices hold dear what the great Chief Justice John Marshall called “the basis on which the whole American fabric has been erected”: a written Constitution, with real and determinate meaning. The judges that Mitt nominates will exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written. And his nominees will possess a demonstrated record of adherence to these core principles.

Rick Santorum is no stranger to the issue of judges. As a U.S. Senator, he stood against activist judicial nominees time and again. As a Republican leader in the Senate, he was pivotal in the fight to confirm U.S. Supreme Court Chief Justice Roberts and Justice Alito. Rick Santorum knows what it is like to take on the left and to win on judges. He is the only Republican Candidate for President to have done so. In addition, in 2004 when activist judges sought to legislate from the bench and redefine marriage, Rick spearheaded the debate in favor of the Federal Marriage Amendment. When the Partial Birth Abortion law was improperly struck down by the Supreme Court, he led the charge in Congress to send it back to them to get it right which they did the second time, ending a horrific procedure. He believes that the time has come to break up the 9th Circuit and send a message that judicial activism is not acceptable and to provide other Western states appellate judges that better reflect their values and the U.S. Constitution.

Rick understands and appreciates the fact that the design of our constitution which has stood the test of time is distinguished by two simple yet profound ideas: first, that power should be separated among three branches of government, and second, that each branch must be “checked and balanced” by the others so that each branch does not usurp the powers of the others. Rick believes that one of the greatest threats to freedom occurs when un-elected judges attempt to legislate from the bench.

Rick believes that because judges serve for as long as thirty to forty years, judicial appointments are one of a President’s most important and long-lasting decisions. Therefore, he has established criteria for judicial appointments that will enable him to appoint excellent judges – and justices to the U.S. Supreme Court – who will respect and abide by the Constitution.

Rick is committed to nominating to federal judgeships only very qualified and ethical individuals who, at a minimum, possess a clear record in support of the following key constitutional principles:

That the Constitution provides federal judges with authority to decide cases but that all legislative power is reserved exclusively for the legislative branch and, accordingly, judges have no authority to legislate from the bench and must never do so.

That the Constitution provides that the U.S. Constitution and U.S. laws are the supreme law of the land, and that federal judicial power extends to cases arising under the United States constitution and federal laws and, accordingly, judges should not in any way rely upon any form of foreign law or international law for the purpose of interpreting the United States Constitution and laws.

Rick Santorum believes that the Judiciary is a critical part of our system of government, but it is the third branch of government under our Constitution, and should not act like the first. President Obama often prefers when it does legislate instead of Congress. For example, when he refuses to defend the Congressionally approved Defense of Marriage Act. This is one more example of his leading from behind and one more example of his distorted view of the Constitution. Judicial activism is a core strategy of the left and it needs to be confronted head on. Rick Santorum has done that and will continue to do so.

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Primary Eve: The Candidates And The Courts

According to the Secretary of State website, the February 28th Michigan Republican primary election ballot will include the names of Michele Bachmann, Herman Cain, Newt Gingrich, Jon Huntsman, Gary Johnson, Fred Karger, Ron Paul, Rick Perry, Buddy Roemer, Mitt Romney and Rick Santorum. The Democratic ballot will include only the name of Barack Obama. From the official websites of the candidates actively campaigning in Michigan, here, in alphabetical order, are the candidates' statements on the judiciary and the courts: